Safety and OSHA News

Zero-tolerance drug policy does zero good in court

An Iowa employee got fired for doing drugs. But she’ll be able to buy a lot more drugs with the $40,000 windfall the court ordered her employer to pay her as a result. 

The company didn’t have a random drug-testing policy. Its zero-tolerance policy called for testing only if an employee had an accident.

The problem for the company: Though the employee ended up being treated for a work-related injury, there had been no accident, said the court.

In other words, it didn’t matter that the employee was taking drugs. What mattered was how the company came to find out.

New policy

It all began a year earlier. The employee had been diagnosed with a mild case of carpal tunnel syndrome. After some conservative treatment,  she improved and got back to work. The company even modified some of her job duties to help ease her symptoms.

Shortly after that, the company implemented its new policy: Any employee who had an accident requiring medical treatment would be tested. If you failed, you were gone.

When the employee’s carpal tunnel began acting up again, her doctor referred her to an orthopedist. When she got in to see him – a couple of weeks later – she was told she needed to be drug-tested.

The test came back positive for cocaine and she was fired.

She might have been surprised by the test, but she wasn’t surprised when she failed. She even turned down her right to be retested. No point, she said: It’ll turn up positive again.

Nonetheless, she sued, arguing that the company was out of line,

And she won.

No connection

The court agreed that the company had overstepped by testing her in the first place. Its policy called for testing if an employee had an accident.  She had a cumulative trauma injury. That’s different, it said.

The company countered with testimony that cocaine can cause people to work faster, and in so doing aggravate previous injuries.

But the court didn’t buy it. Even if this involved an accident and a new injury – which was questionable – by the time she took the test, weeks had passed. So there was no way to connect drugs to any accident, it said.

The bottom line, according to the court: She wouldn’t have been fired if she hadn’t been tested. And based on your policy, she never should have been tested in the first place. So get out your checkbook and write her a check for back pay, attorney fees and court costs.

Cite: Skipton v. S& J Tube, Inc.

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Comments

  1. Sounds like the company needs to implement random testing and testing “for cause”.

  2. agreed

  3. “She wouldn’t have been fired if she wasn’t tested” What??? Isn’t that the case for about 100% of workplace drug terminations. Bottom line should be that this person was under the influence of drugs at the workplace – everyone understands that is against the rules – why pay her 40K?

  4. A positive drug test does not mean the person was “under the influence of drugs at the workplace”. It means somewhere along the line the person took some drugs. Each drug has a different ‘shelf life’ of how long it stays in the body for a positive result. That is why drug testing needs to happen in the first 24 hours to determine if drugs caused the accident. Testing weeks later was against this company’s policy and therefore violated her privacy. Perhaps random testing and just cause testing is a good idea for this company if its workers are using cocaine.

  5. Alice, I read your comments, and I respectfully disagree with the rationale presented. I agree that it could have been done better, however, this employee tested positive, and consented to the testing. What is the privacy violation? If it was a privacy matter, did she not have the right to refuse the test and “lawyer up” if necessary? She consented and tested positive. I guess my questions is “Did she deserve $40K for testing positive to cocaine?” and “Why are there positive consequences for doing something illegal?” I believe cocaine is still an illegal drug, correct?

  6. I had something like this happen to me once and I stood my ground and won. I had been in a car accident and out for a month from a cracked rib. When I came back to work, I bent over into a bin to inspect some parts and caused an ache in my back so I went to be checked out. From the accident I had been pinned between the steering wheel and the car door and still had a stiff leg when getting up in the mornings and was taking one generic vicadin pills to ease that until I warmed up from moving around. When I went to get my back checked out, I declared the medication I was taking, it was one pill in the morning and that was it. But the results came back like I was taking a handful at once and the company started treating me like I had a drug problem. I immediately demanded another test. They were telling me they were going to send me to rehab and I refused that non-sense. As it turned out, the same lab that tested my urine also tests the urine for the police department and they filed a complaint that their tests results were coming back with results being much higher than normal, the test equipment was out of calibration.

  7. The privacy violation occurred at the time of the company request. Perhaps her consent could be considered a waiver; I see your point.

    However, there is no evidence she was high at work. She was paid back wages for the illegal firing. Yes, the illegal firing. She did not recieve money for doing cocaine, she did not have positive consequences for illegal activity. If the company had played by its own policy, she would have gotton the $40,000 in the form of her regular paychecks.

    If the company fails to revise its policy to include random and/or just cause testing to catch her high at work, then at that point one could argue she did not have negative consequences of her illegal activity.

  8. Alice – we agree to disagree…

  9. Robert K. says:

    Alice,

    I know the owner of an Ambulance company called Lifestar. They had an EMT2 who was operating an ambulance and was out on a call and got into an accident. Blood test came back positive for Pot and he was immediately terminated. The guy got an attorney and the courts ordered giving him his job back and back pay. The reason was because the company didn’t offer him the opportunity for rehabilitation.
    The story was related to me by the Ambulance company owner when I was going through my little thing, and he also included it’s pretty hard to fire someone over drugs anymore.

  10. As a Safety Professional, I have worked closely with the H.R. Dept. for a few different companies and have seen this type of issue come before. I would have to agree with the comments made by Alice. The company in question really needs to have an attorney involved in rewriting their drug and alcohol policy in order to prevent this from happening again. The company should have tested her the minute she requested outside medical treatment instead of waiting a couple of weeks. It sounds to me that someone dropped the ball at the time medical treatment was requested, and tried to go back and request a drug test to be taken. I see more than one wrong issue with this case.

  11. I reckon time has passed me by. Even though Alice states this employee was not “under the influence of drugs at work”, I would bet against that statement, as cocaine is highly addictive, and most likely not an isolated issue. I know that rules for drug testing are kind of squirrely, but the bottom line is this; The employee anecdotally consented to the test. The employee was tested. The tests showed she had cocaine in her system. She was offered a retest, but refused, as she knew the results would be much the same. The employee was terminated. Should have been the end of the story. In my opinion it takes some audacity and lack of ethics for an illegal drug abuser to take the claim to workers comp, and even more of a lack of ethics for a court to substantiate her claim. An Illegal Firing for taking an Illegal drug…kind of paradoxical isn’t it?

  12. Robert K. says:

    DMac,

    I agree.

    It seems to me that the courts favor the person who brings business to the courtroom more than they do actual justice or doing what is right.

  13. There is no evidence she was high at work! She probably consented to the test because she thought she would be clean; not the sign of an addict or daily user. If she was not high at work, she had every right to not be fired for being high at work.

    As for the courts, they too did the right thing. Facts: 1. No evidence she was high at work; 2. The evidence that she was high once somewhere was illegally obtained; 3. Illegal evidence means it was an illegal firing.

  14. Alice – we are going to have to agree to disagree. She had drugs in her system when she was tested, she did not retest because she knew the results would be the same. It does not matter if I am high at work or not, if I get tested and there are drugs in my system I will be terminated. The courts did the wrong thing – they essentially said it was OK to have illegal drugs in your system. As you notice I am being respectful in stating my opinion, I simply disagree with having a co-worker who does cocaine, and being rewarded for illegal behavior regardles of the technicalities. Cocaine is illegal to buy, sell, consume, or have in a persons system, therefore, she should not be rewarded for using….you can call it backpay, but my opinion, is that it rewarded her as she should have been terminated – end of story. The court should have looked at it and dismissed the case based simply on the fact that cocaine is illegal for any purpose. It is very unlikely she did cocaine one time and got caught on that very day.

  15. Alice, she had the substance in her system, and that is all it takes that it could affect her judgement. This is Safety and why take the risk. You’re metering into grey area. We have to stay black or white. She had it in her system at the time of testing or didn’t she. The fact she was using an illegal substance means she has no qualms about using it anytime she gets the urge which means at work too.

    DMac, It seems to me that it doesn’t matter what the employee handbook states, the courts are pushing for businesses to seek rehabilitation for employees using drugs rather than firing them.

  16. Robert K – I agree; Alice, I apologize, but I am old school and hesitant to throw my integrity out on a technicality. Most companies who are successful understand and appreciate employees by ensuring a good safety program is in place, so I have very little sympathy for this employee. She was obtaining treatment, and it appears the company was ensuring her well being. Just because a court in Iowa found a technicality and called this “cumulative trauma” instead of an “accident” BINGO! 40 Grand. It is a reoccurance of an injury, and I dont think the company was “out to get” this employee. Safety and Workers Comp is complicated enough without protecting illegal drug users, who can do harm tho themselves or some innocent victim. My company offers rehab for anyone who presents before testing. If an employee is injured at work and the drug test is positive – they lose their job, but the injury is still covered through WC.

  17. All of our speculation regarding the worker is opinion and assumption. Plenty of people get drunk off the clock but would never drink on the job.

    However, courts do not and cannot operate in the world of opinion, only facts and laws. No gray, just black and white. Therefore, the ethics of the court should not be questioned because they met the requirement of decision making based on facts and law, black and white. When a city issues a parade permit to a hate group when the group files the proper paperwork and pays the fees, the city is not supporting the hate group! The city is following the regulation that says anyone can have a parade if they go through the proper channels. The court did not say that is is okay to do cocaine. It said this company made mistakes in its safety plan and violated the law in doing so.

  18. Robert K. says:

    Alice, Alcohol is not illegal to consume and cocaine is. What is the company to do when now they know that an employee of theirs is using a controlled substance?

    Furthermore, if an employee is found to have alcohol still in the system and even medications that warn to not be operating machinery while using the product, the same rules still do apply. No exceptions. Safety is Safety.

  19. It is illegal to consume alcohol on the job, yet you are not saying people who drink at home will drink at work but people who use cocaine at home will use it at work. Not a fair assumption.

    Yes, the woman broke the law and I hope the employer is able to legally fire her or get her into rehab.

  20. If a person reports to work is tested for alcohol and the results say s/he is legally beyond the companies BAC cutoff, the employee should be terminated. You know, the hate group example is comparing apples to oranges, as their right to free speech and demonstration is guarenteed under the constitution, drug use is not. The court did not have to make the decision to call this a cumulative trauma – that was their interpretation, in my opininon – they were wrong in doing so because regardless it is a work place injury or accident.

  21. Hold it……..Hold it……. Alice is right

    To start testing when you do not have a policy for ongoing testing is a violation of an employee’s privacy………Many folk at work would allow the test because they are afraid not to.

    Frequently (even when there is restricted testing) there is the “If you do not participate you are terminated” clause. To suddenly test someone when your own policy states a restriction is indeed violation an employee’s privacy be it alcohol, cocaine, prescribed medications or whatever….And that is what the award is for.

    I am in no way condoning illegal drug use but we all have a right to privacy……….

    This is a case of the poisoned fruit……….

  22. Stan Tolle says:

    I find that drug testing is really in essence a religious test. For the most part it is a belief that the using of some substances is some how evil. This can be seen with pot where people are denied work because they use the stuff on the week end. Of course there is the issue of impairment and additive behavior. However for the most part companies are using the drug testing to get out of payments for accidents and injures, particularly chronic injuries like back pain and carpel tunnel cases. Like here in CO if you test positive for a ungodly substance the workers comp responsibility is reduce by 1/2. How often do you think the bosses drug testing lab comes up with a positive test result.

  23. Illegal drugs are illegal, whether that is right or wrong – it just is. Personally I wish they would legalize marijuana, and set it side by side with Alcohol and tobacco. However, until that happens, they are illegal, therefore, the users take the risk of going to jail, losing their jobs, paying fines, and, yes, dare I say it – when injured and testing positive facing consequences that non users and negative testing ee’s do not. My opinion, is that mind altering substances (drugs/alcohol) have no place on the work floor for safetys sake….If someone uses drugs or alcohol, I am sure they would have a different opinion – but that is mine.

  24. Robert K. says:

    I have witnessed people go from good performers to careers going down the drain when they were non-drug users to being introduced and using POT. Then have people tell me it’s harmless just boggles my mind. I cannot not see any Safety Professional condoning the use of controlled substances and even try rationalizing its being made legal.

    There is no control. You can’t tell the difference from someone using on Saturday from someone that decided to smoke it that Monday during lunch.

    I can’t see anyone condoning somebody, who is a heavy user and allowing them to operate machinery when they are lethargic.

    Whoa, Cool…

  25. hankroberts says:

    A classic example of the difference between having a right to something, and it being right to do it.

  26. ” The company should have tested her the minute she requested outside medical treatment instead of waiting a couple of weeks.”
    NOW we see the real reason for drug testing… to keep employees from reporting injuries and seeking treatmernt. It’s ALL about the money.

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